Exhibit 10.1


 


SEPARATION
AGREEMENT


 


THIS SEPARATION AGREEMENT (the “Agreement”), is made
as of this 30th day of June, 2008 (the “Effective Date”) by and between Vital
Images, Inc., a Minnesota corporation (the “Company”) and Philip I. Smith
(the “Executive”).


 


BACKGROUND


 


1.             Executive is
currently the Executive Vice President of Corporate Development and Strategic
Planning for the Company.


 


2.             The Company and
Executive have entered into an Employment Agreement dated September 8,
2005 (the “Employment Agreement”), and a Change in Control Agreement dated April 29,
2004 (the “Change in Control Agreement”).


 


3.             The Company and
Executive have entered into various agreements regarding stock options and
restricted stock.  These agreements are
the following: Incentive Stock Option Agreement dated February 28, 2003;
Non-Statutory Stock Option Agreement dated February 28, 2003; Incentive
Stock Option Agreement dated August 7, 2003; Non-Statutory Stock Option
Agreement dated August 7, 2003; Incentive Stock Option Agreement dated February 5,
2004; Non-Statutory Stock Option Agreement dated February 5, 2004;
Non-Statutory Stock Option Agreement dated February 15, 2005; Restricted
Stock Award Agreement dated February 15, 2005; Non-Statutory Stock Option
Agreement dated September 8, 2005; Restricted Stock Award Agreement dated September 8,
2005; Non-Statutory Stock Option Agreement dated March 9, 2006;
Non-Statutory Stock Option Agreement dated February 2, 2007; and
Restricted Stock Award Agreement dated February 28, 2007.


 


All shares underlying
options exercisable by Executive as of the Termination Date pursuant to the
option agreements shall be referred to as Executive’s “Options” and all shares
of restricted stock that have been granted to Executive pursuant to the restricted
stock agreements and have vested as of the Termination Date shall be referred
to as Executive’s “Restricted Stock.” 
The agreements regarding Options shall collectively be referred to as
the “Option Agreements,” and the agreements regarding Restricted Stock shall
collectively be referred to as the “Restricted Stock Agreements.”  All Option Agreements and Restricted Stock
Agreements were entered into pursuant to and are governed by the Company’s 1997
Stock Option and Incentive Plan (the “1997 Plan”).


 


4.             The Company and
Executive have decided to terminate Executive’s employment with the Company as
of July 31, 2008 (the “Termination Date”).


 


5.             The Company and
Executive desire to resolve all present and potential issues between them
relating to Executive’s employment and termination of Executive’s employment,
and have agreed to a full resolution of any such issues as set forth in this
Agreement.


 


NOW THEREFORE, in consideration of the mutual promises
and provisions contained in this Agreement and in the Release referred to
below, the parties, intending to be legally bound, agree as follows:


 


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AGREEMENT


 


1.             Termination
of Employment. Executive’s employment with the Company shall terminate as
of the Termination Date. On the Termination Date, Executive shall cease to be
an employee of the Company without further action by either party.  For purposes of this Agreement “Executive”
shall mean the undersigned Executive and anyone who has obtained any legal
rights or claims through him, and “Company” shall mean Vital Images, Inc.,
its parent company, their subsidiaries, successors and assigns, their
affiliated and predecessor companies, their successors and assigns, their
affiliated and predecessor companies and the present or former directors,
officers, officers, employees, representatives and agents (including, without
limitation, its accountants and attorneys) of any of them, whether in their
individual or official capacities, and the current and former trustees or administrators
of any pension or other benefit plan applicable to employees or former
employees of Company, in their official or individual capacities.


 


2.             Earned
Compensation. The Company shall pay Executive all earned base salary
through the Termination Date, as well as the amount accrued for Executive’s
vacation time through the Termination Date. 
Executive will continue to participate in all Executive benefit plans in
which he is currently a participant, in accordance with the terms of such
plans, through the Termination Date.


 


3.             Executive’s
Options and Restricted Stock. All vesting or exercise rights, limitations,
restrictions or other terms or conditions related to Executive’s Options and
Restricted Stock shall remain subject to and governed by the respective
agreements and the 1997 Plan, except that Article 9 of the Option
Agreements and Article 3(d) of the Restricted Stock Agreements shall
be deleted and of no effect as of the Termination Date.


 


4.             Company’s
Obligations and Separation Agreements. 
In consideration for Executive’s promises contained herein, specifically
including, but not limited to, Executive’s Obligations as set forth in
Paragraph 5, Company agrees to provide Executive with the following benefits:


 


A.    The Company will pay Executive
severance pay in the amount of One Hundred Ninety Thousand Dollars
($190,000.00).  The severance pay will be
paid on the Company’s first regular payroll date after the expiration of any
applicable rescission periods, as set forth in Paragraph 7.  All payments shall be subject to applicable
taxes and withholding.


 


B.    Executive, pursuant to federal
and state law, may, for a period of eighteen (18) months following the
Termination Date (“COBRA Period”), continue the group medical and dental
insurance coverage previously provided to Executive by Company.  Executive will be required to pay the entire
premium for such benefits for any portion of the COBRA Period that Executive
elects to continue COBRA coverage.  The
benefit described in this paragraph B is provided in exchange for the release
of Executive’s claims under the Age Discrimination in Employment Act (“ADEA)
and is the only consideration provided for this purpose.


 


C.    Company shall allow Executive
to retain the laptop computer, cell phone and cell phone number issued by or
through the Company to Executive; however, Executive shall remove or destroy
any Company property or information identified by the Company contained on the
laptop computer and cell phone no later than the date of this Agreement, to the
satisfaction of the Company.  For such
purpose, on the date this Agreement is signed by Executive, Executive shall
give access to Company to the laptop computer and cell phone.  Cell phone expenses after the Termination
Date will be the full responsibility of Executive.


 


5.             Executive’s
Obligations.  As material inducement
to Company in entering into this Agreement and providing the consideration
described in Paragraph 4, Executive hereby agrees as follows:


 


A.    General Release of Claims.
Executive knowingly and voluntarily releases and forever discharges Company, to
the full extent permitted by law, of and from any and all claims, known and
unknown, asserted and unasserted, Executive have or may have against Company as
of the date the Executive signs this Agreement, including, but not limited to:


 


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i.    All
claims arising out of or relating to Executive’s employment with Company and
the termination of Executive’s employment; and


 


ii.   All
claims arising out of or relating to statements, actions, or alleged omissions
of Company; and


 


iii.  All
claims for any alleged unlawful discrimination, harassment, retaliation or
reprisal or any other alleged unlawful practices arising under any federal,
state, or local statute, ordinance, or regulation, including without limitation
claims under Title VII of the Civil Rights Act of 1964, as amended; the
Americans with Disabilities Act, 42 U.S.C. sec. 1981; the Sarbanes-Oxley Act of
2002; the Employee Retirement Income Security Act of 1974; the Equal Pay Act;
the Immigration Reform and Control Act; the Worker Adjustment and Retraining
Notification Act; the O.C.G.A. and its counterparts; the Fair Credit Reporting
Act; and state and local human rights acts;


 


iv.  All
claims for alleged wrongful discharge; breach of contract; breach of implied
contract; breach of a covenant of good faith and fair dealing; breach of
fiduciary duty; estoppel; Executive’s activities, if any, as a “whistleblower;”
defamation; infliction of emotional distress; fraud; misrepresentation;
negligence; harassment; retaliation or reprisal; constructive discharge;
assault; batter; false imprisonment; invasions of privacy; interference with
contractual or business relationships; any other wrongful employment practices
or violation of any common law; and


 


v.   All
claims for compensation of any kind, including without limitation, bonuses,
commissions, vacation pay, and expense reimbursements; and


 


vi.  All
claims for back pay, front pay, reinstatement, other equitable relief, compensatory
damages, damages for alleged personal injury, liquidated damages, and punitive
damages; and


 


vii. All
claims for attorney’s fees, costs and interest.


 


However, by signing this Agreement Executive does not
waive any claims that may arise after the date on which Executive signs this
Agreement, the right to take legal action to enforce the terms of this
Agreement, or any claims that the law does not allow Executive to waive in a
private agreement such as this, including, without limitation, the right to
file a charge with or participate in any investigation conducted by the Equal
Employment Opportunity Commission (“EEOC”) or any state or local human rights
agency.  Executive agrees to waive,
however, his right to any monetary recovery should the EEOC or any state or
local human rights agency pursue any claims on Executive’s behalf in a private
agreement such as this.


 


Should Executive bring any claims against Company,
Executive agrees to immediately return all payments made to Executive under
Paragraph 4 of this Agreement, other than the payments provided in exchange for
the release of claims under the ADEA. 
Executive further agrees that if Executive fails to do so, the payments
made in Paragraph 4 of this Agreement, other than those provided in exchange
for the release of claims under the ADEA, may be offset against any payments
that Company is ordered by a court or administrative agency to make to
Executive.


 


B.      Covenant Not To Sue.  Executive agrees that he will not initiate
any litigation to pursue claims which Executive released in this Paragraph
5.  This covenant does not apply to
litigation challenging the validity of this Paragraph 5.  Further, Executive agrees to pay Company’s
attorney’s fees if Executive breaches the covenant not to sue contained in this
Section 5.B.


 


C.      Company Property.  Subject to Section 4.C. of this
Agreement, Executive will return all property belonging to Company no later
than two weeks after the Termination Date, whether such property is currently
on or off the premises of Company, including, without limitation, any and all
computer hardware or computer software. 
The company will turn off access to the Company network on the
Termination Date.


 


D.      Confidentiality and
Loyalty.  Executive acknowledges and
reaffirms his continuing obligations to Company regarding confidentiality and
loyalty pursuant to the Employment Agreement and as exist by operation of
law.  Executive also agrees not to
disclose the terms and conditions of this Agreement,


 


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other than to Executive’s spouse or significant other,
attorneys, tax preparer, and other individuals or entities that need to know
the terms and conditions to provide services on Executive’s behalf or as
required by law.


 


E.       Non-Disparagement.  Executive agrees that he shall not disparage
or defame Company in any respect.


 


F.       Expense Reimbursement.  Executive shall have sixty (60) days from the
Termination Date to submit Executive’s last expense report.  Company reserves its right to review and deny
payment on any expenses submitted by Executive that do not comply with Company
policies and procedures regarding expense reimbursement.


 


G.      Bring-down Release.  Executive agrees to provide a “bring down”
release in the form attached hereto as Schedule A and incorporated herein by
this reference.  This bring-down release
will be signed by Executive on the Termination Date, except in the event of his
death or disability prior to the Termination Date.  Executive acknowledges that the money and benefits
received and to be received by Executive by entering into this Agreement are
beyond what Executive would receive if he did not enter into the Agreement and that
they are provided by Company in exchange for the releases and agreements
provided by Executive herein and in Schedule A.


 


H.      Transition Services.
Between the date of this Agreement and the Termination Date, Executive agrees
to provide transition services to the reasonable satisfaction of the Company’s
President and Chief Executive Officer.  Executive
acknowledges that (i) the transition services must be performed on a
regular basis until the Termination Date; and (ii) Executive’s agreement
to perform the transition services is a material inducement for the Company to
enter into this Agreement and provide the benefits set forth herein.


 


I.        Remedies.  Executive acknowledges that any breach of any
of the promises set forth in this Paragraph 5 will cause Company irreparable
harm for which there is no adequate remedy at law and Executive therefore consents
to the issuance by any court of competent jurisdiction of any injunction in
favor of Company enjoining the breach of any of those promises.  If any promise made by Executive in this
Paragraph 5 or Paragraph 6 should be held to be unenforceable because of its
scope or duration, or the area or subject matter covered thereby, Executive
agrees that the court making such determination shall have the power to reduce
or modify the scope, duration, subject matter or area of that promise to the
extent that allows the maximum scope, duration, subject matter or area
permitted by applicable law.  Executive
further agrees that the remedies provided for herein are in addition to, and
are not to be construed as replacements for, or a limitation of, rights and
remedies otherwise available to Company.


 


6.             Non-Compete Restrictions.  In
exchange for the Company’s agreements, covenants and promises set forth in this
Agreement, which Executive acknowledges are adequate consideration for his
obligations in this Paragraph 6, Executive agrees that Executive shall not,
directly or indirectly, on behalf of himself or a third party, for a period of
eighteen (18) months following the Termination Date (“Restricted Period”), do
any of the following:


 


1.     Own, manage, operate, join, control, consult with,
participate in the ownership, operation or control of, be employed by, or be
connected in any manner with any person or entity which manufactures, sells,
solicits, offers, offers to provide, or provides any Competitive Products and Services,
unless such employment is by a large diversified entity and on a basis such
that Executive will have no involvement whatsoever with the provision of
Competitive Products and Services during the Restricted Period.  For purposes of this Agreement, Competitive
Products and Services shall include all products and services similar to or the
same as those offered by Company to its customers involving advanced medical
visualization and analysis software technologies beyond MIP (Minimum Intensity
Projection) and MPR (Multi Planar Reformation) that allow for analysis,
manipulation, and distribution of images, such as radiological studies, in 2D,
3D and 4D.  This restriction applies
worldwide, and Executive agrees and acknowledges a worldwide restriction is reasonable
in scope given the Company’s worldwide territory;


 


4

















 


2.     Solicit customers or the business of any
person, firm, corporation or other entity who is or who was a customer or
account of Company or any of Company’s affiliates and subsidiaries while
Employee was employed by Company, including but not limited to resellers or
distributors of Company products or services, or accept business from any
person, firm, corporation or other entity who is or who was a customer or
account of Company or any of Company’s affiliates and subsidiaries while
Executive was employed by Company, for the purpose of selling to such customer
or account any Competitive Product or Service; and


 


3.        Induce or seek to induce any person employed
with Company or its affiliates as of the Separation Date to discontinue that
person’s employment with Company and/or solicit, recruit, hire or participate
in any other person’s or entity’s effort to hire an employee of Company.


 


7.             Executive’s Understandings.
Executive acknowledges and represents that:


 


A.    Executive understands that he
has the right to consult with an attorney regarding the meaning and effect of
this Agreement.


 


B.    Executive also understands
that he has twenty-one (21) calendar days from the date on which he receives an
unsigned copy of this Agreement in which to consider whether or not to sign
this Agreement. Executive further understands that he need not use the full
twenty-one (21) calendar days, and that if he signs this Agreement before the
expiration of the twenty-one (21) day period he does so voluntarily and of his
own free will.  Executive agrees that the
date on which he received this Agreement is accurately reflected in Paragraph 15
of this Agreement.


 


C.    Executive understands that he
may rescind (that is, cancel) within seven (7) calendar days of signing
the Agreement and the Bring-Down Release with respect to claims arising under
the Age Discrimination in Employment Act (“ADEA Rescission Period”) and that he
may rescind within fifteen (15) calendar days of signing the Agreement or the
Bring-Down Release, as applicable, with respect to claims arising under the
Minnesota Human Rights Act (“MHRA Rescission Period”) (collectively, “Rescission
Periods”).  To be effective, the
rescission must be in writing, delivered to Company at 5850 Opus Parkway, Suite 300,
Minnetonka, MN 55343-4414 ATTN: Cindy Edwards, within the applicable rescission
period, or sent to Company, at such address, by certified mail, return receipt
requested, postmarked within the applicable rescission period.


 


8.             Cancellation of
Agreement By Company.  If Executive
exercises his right of rescission under Paragraph 7.C. of this Agreement,
Company will have the right, exercisable by written notice delivered to Executive,
to terminate this Agreement in its entirety, in which event Company will have
no obligation whatsoever to Executive hereunder.  If Executive exercises his right of
rescission under Paragraph 7.C. of this Agreement, and Company does not
exercise its right to terminate this Agreement hereunder, the remaining
provisions of this Agreement (including specifically the remaining provisions
of Paragraph 5 or Paragraph 6 of this Agreement) shall remain valid and
continue in full force and effect.


 


9.             Performance By
Executive.  Nothing contained herein
shall operate as a waiver or an election of remedies by Company should
Executive fail to perform any duty or obligation imposed upon him
hereunder.  Notwithstanding anything
contained herein to the contrary, this Agreement and the duties and obligations
of Executive hereunder shall continue in full force and effect irrespective of
any violation of any term or provision of this Agreement by Executive.


 


10.           No Admission Of
Liability.  The parties agree that
this Agreement shall not be considered an admission of liability by
Company.  Company expressly denies that
it is in any way liable to Executive or that it has engaged in any wrongdoing
with respect to Executive.


 


11.           Executive’s
Acknowledgments.  Executive acknowledges
and represents that:  (a) he has
read this Agreement and understands its consequences; (b) he has received
adequate opportunity to read and consider this Agreement; (c) he has
received adequate opportunity to consult an attorney regarding this Agreement,
and either has consulted an attorney or decided of his own free will not to
consult an attorney; (d) he has determined to execute this Agreement of
his own free will and acknowledges that he has not relied upon any statements
or explanations made


 


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by
Company regarding this Agreement; (e) the promises of Company made in this
Agreement constitute fair and adequate consideration for the promises, releases
and agreements made by Executive in this Agreement and Schedule A, (f) he
is the legal party in interest in this Agreement, with legal title to all
rights and claims asserted and hereby released; and (g) he has not filed
for bankruptcy or assigned or transferred any rights against Employer to any
other person or entity.


 


12.           Entire Agreement.  Except with regard to the Option Agreements
and the Restricted Stock Agreements, as such as governed by the 1997 Plan and
as modified herein, and Paragraphs 3.4, 3.5, 3.6, 3.8, 4.5 and 4.6 of the
Employment Agreement, this Agreement contains the entire agreement between
Company and Executive and supersedes and cancels any and all other agreements,
including the Change in Control Agreement and any other agreement, whether oral
or in writing, between Company and Executive with respect to Executive’s
employment with the Company, the termination of Executive’s employment and the
subject matter referred to herein.


 


13.           Governing Law.  This Agreement shall be construed and
enforced in accordance with the laws of the State of Minnesota. All actions
regarding this Agreement shall be brought in a state or federal court in the
State of Minnesota.


 


14.           Notices. All
notices required or permitted to be given under this Agreement shall be given
by certified mail, return receipt requested, to the parties at the following
addresses or to such other addresses as either may designate in writing to the
other party:


 


	
  If to Company:

  	
   

  	
  Vital Images, Inc.

  
	
   

  	
   

  	
  5850 Opus Parkway

  
	
   

  	
   

  	
  Suite 300

  
	
   

  	
   

  	
  Minnetonka, MN 55343-4414

  
	
   

  	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  	
   

  
	
  If to Executive:

  	
   

  	
  Philip I. Smith

  
	
   

  	
   

  	
  4503 Browndale Ave.

  
	
   

  	
   

  	
  Edina, MN 55424

  



 


15.           Effective Date.  This Agreement was provided to Executive on June 11,
2008.  If Executive desires to accept
this Agreement, Executive shall execute the Agreement and return the same to
Company at the address set forth in Paragraph 14.


 


16.           Counterparts.  This Agreement may be executed in
counterparts with an executed counterpart to be delivered to the other
party.  Each such executed counterpart
shall be deemed an original but shall constitute one and the same instrument.


 


IN
WITNESS WHEREOF, the parties have executed this Agreement the date and year
first above written.


 


	
   

  	
   

  	
  VITAL IMAGES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  6/30/08

  	
   

  	
  By

  	
  /s/ Michael H. Carrel

  
	
  Dated:

  	
   

  	
  Michael H. Carrel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  6/30/08

  	
   

  	
  /s/ Philip I. Smith

  
	
  Dated:

  	
   

  	
  Philip I. Smith

  
					



 


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Schedule A


 


Executive’s “Bring-down”
Release


 


This Bring-down Release Agreement is entered into as of July 31,
2008 by Philip I. Smith, a resident of the State of Minnesota (“Executive”).


 


1.             Definitions.  We intend all words used in this Bring-down
Release to have their plain meanings in ordinary English.  Specific terms we use in this Bring-down Release
have the following meanings:


 


A.            Executive, as
used herein, shall include the undersigned Executive and anyone who has
obtained any legal rights or claims through the undersigned Executive.


 


B.            Company, as
used herein, shall at all times mean Vital Images, Inc., its parent
company, its subsidiaries, successors and assigns, their affiliated and
predecessor companies, their successors and assigns, their affiliated and
predecessor companies and the present or former directors, officers,
Executives, representatives and agents (including, without limitation, their
accountants and attorneys) of any of them, whether in their individual or
official capacities, and the current and former trustees or administrators of
any pension or other benefit plan applicable to employees or former employees
of Company, in their official or individual capacities.


 


C.            Executive’s Claims,
as used herein, means all of the rights Executive, has on or prior to the date
hereof, to any relief of any kind from Company, whether or not Executive now
knows about those rights, arising out of or relating to Executive’s employment
with Company and the termination of Executive’s employment; all claims arising
out of or relating to statements, actions, or alleged omissions of Company; all
claims for any alleged unlawful discrimination, harassment, retaliation or
reprisal or any other alleged unlawful practices arising under any federal,
state, or local statute, ordinance, or regulation, including without limitation
claims under Title VII of the Civil Rights Act of 1964, as amended; the
Americans with Disabilities Act, 42 U.S.C. sec. 1981; the Sarbanes-Oxley Act of
2002; the Employee Retirement Income Security Act of 1974; the Equal Pay Act;
the Immigration Reform and Control Act; the Worker Adjustment and Retraining
Notification Act; the O.C.G.A. and its counterparts; the Fair Credit Reporting
Act; state and local human rights acts; 
all claims for alleged wrongful discharge; breach of contract; breach of
implied contract; breach of a covenant of good faith and fair dealing; breach
of fiduciary duty; estoppel; Executive’s activities, if any, as a “whistleblower;”
defamation; infliction of emotional distress; fraud; misrepresentation;
negligence; harassment; retaliation or reprisal; constructive discharge;
assault; battery; false imprisonment; invasion of privacy; interference with
contractual or business relationships; any other wrongful employment practices
or violation of any common law; all claims for compensation of any kind,
including without limitation, bonuses, commissions, vacation pay, and expense
reimbursements; all claims for back pay, front pay, reinstatement, other
equitable relief, compensatory damages, damages for alleged personal injury,
liquidated damages, and punitive damages; and all claims for attorney’s fees,
costs and interest; and any other claims for unlawful employment practices
arising on or prior to the date hereof; provided, however, that the term “Executive’s
Claims” shall in no event include Executive’s rights to receive the payments,
benefits and continuing protections provided under the June 30, 2008
Separation Agreement between Executive and Company.


 


2.             Executive’s
Obligations.  As material inducement
to Company in entering into the Separation Agreement, and specifically in
consideration for the payments and benefits, as set forth in more detail in the
Separation Agreement, Executive hereby agrees as follows:


 


A.            Release.  Executive agrees to release all Executive’s
Claims.  However, by signing this
Bring-down Release Executive does not waive any claims that may arise after the
date on which Executive signs this Bring-down Release, the right to take legal
action to enforce the terms of this Bring-down Release, or any claims that the
law does not allow Executive to waive in a private agreement such as this,
including, without limitation, the right to file a charge with or participate
in any investigation conducted by the Equal Employment Opportunity Commission (“EEOC”)
or any state or local human rights agency. 
Executive


 


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agrees to waive, however, his right to any monetary
recovery should the EEOC or any state or local human rights agency pursue any
claims on Executive’s behalf.


 


B.            Covenant Not To Sue.  Executive agrees that he will not initiate
any litigation to pursue claims which Executive released in Section 2.A.  This covenant does not apply to any
litigation challenging the validity of this Section 2.  Further, Executive agrees to pay Company’s
attorneys’ fees if Executive breaches the covenant not to sue contained in this
Section 2.B.


 


3.             Executive’s
Understandings.  Executive
acknowledges and represents that:


 


A.    Executive has the right to consult with an
attorney regarding the meaning and effect of this Bring-down Release.


 


B.    Executive acknowledges that he was offered a
period of twenty-one (21) calendar days from the date on which he received an
unsigned copy of this Bring-down Release in which to consider whether or not to
sign this Bring-down Release and that, having been advised of that entitlement,
such period has expired.


 


C.    Executive may rescind (that is, cancel)
within seven (7) calendar days of signing the Bring-down Release, the
provisions of Section 2.A. of this Bring-down Release with respect to claims
arising under the Age Discrimination in Employment Act (“ADEA Rescission Period”)
and that he may rescind within fifteen (15) calendar days of signing the
Bring-down Release the provisions of Section 2.A. of this Bring-down
Release with respect to claims arising under the Minnesota Human Rights Act (“MHRA
Rescission Period”) (collectively, “Rescission Periods”).  To be effective, rescission must be in
writing, delivered to Company at 5850 Opus Parkway, Suite 300, Minnetonka,
MN  55343, ATTN:  Vice President, Human Resources, within the
applicable Rescission Period, or sent to Company, at such address, by certified
mail, return receipt requested, postmarked within the applicable Rescission
Period.


 


4.             Executive’s
Acknowledgements.  Executive
acknowledges and represents that:  (a) he
has read this Agreement and understands its consequences; (b) he has
received adequate opportunity to read and consider this Agreement; (c) he
has received adequate opportunity to consult an attorney regarding this
Agreement, and either has consulted an attorney or decided of his own free will
not to consult an attorney; (d) he has determined to execute this
Agreement of his own free will and acknowledges that he has not relied upon any
statements or explanations made by Company regarding this Agreement;  (e) the promises of Company made in this
Bring-down Release constitute fair and adequate consideration for the promises,
releases and agreements made by Executive in this Bring-down Release and the
(date signed) Agreement between Executive and Company, (f) he is the legal
party in interest in this Agreement, with legal title to all rights and claims
asserted and hereby released; and (g) he has not filed for bankruptcy or
assigned or transferred any rights against Employer to any other person or
entity.


 


5.             Governing
Law.  This Bring-down Release shall
be construed and enforced in accordance with the laws of the State of
Minnesota.  All actions regarding this
Bring-down Release shall be brought in a state or federal court within the
State of Minnesota.


 


6.             Effective
Date.  This Bring-down Release shall
be effective upon the date set forth below.


 


 


	
  Dated: 

  	
  July 31, 2008

  	
   

  	
  /s/ Philip I. Smith

  
	
   

  	
   

  	
  Philip I. Smith

  



 


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